Rainsoft v. Macfarland
OPINION AND ORDER granting #85 Motion for Summary Judgment; granting in part #118 Motion for Sanctions. So Ordered by Chief Judge William E. Smith on 9/30/2018. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
RAINSOFT, a division of Aquion, Inc.,
a Delaware corporation,
C.A. No. 15–432 WES
BRIAN MACFARLAND, d/b/a “Lazy Man
OPINION AND ORDER
WILLIAM E. SMITH, Chief Judge.
Brian MacFarland is the author of a series of blog posts
criticizing the water-treatment company RainSoft.
sued over these posts, alleging defamation and violation of the
MacFarland argues his posts are shielded by the First
Amendment, and indeed successfully executes a “rolled-up plea”:
when not protected opinion, they are substantially true.
Black’s Law Dictionary 1270 (9th ed. 2009).
MacFarland runs the website lazymanandmoney.com, where he
blogs about companies who provide consumer products and services,
with an eye toward saving his readers money. (See Def.’s Statement
of Undisputed Facts (“DSUF”) ¶¶ 1–3, ECF No. 88.)
his sights on RainSoft starting in summer 2013, after he and his
wife sat through an in-home demonstration of RainSoft’s watertreatment products.
(Id. ¶¶ 9, 19, 24.)
conducted by Gus Oster.
The demonstration was
(Id. ¶¶ 24–25.)
Employed by Basement
Technologies, a local RainSoft-products dealer, Oster pitched the
MacFarlands according to a script written by RainSoft.
The script repeatedly touted RainSoft as a maker of
Technologies, a priority that tracked the companies’ business
(See, e.g., id. ¶ 27; DSUF Ex. G at 25–27, ECF No. 88-7.)
foregrounding RainSoft’s brand name and reputation.
U at 2–7, ECF No. 88-21.)
(See DSUF Ex.
The preface to the companies’ dealership
agreement stated, “[I]t is expected that [Basement Technologies]
will protect and embrace the RainSoft®-brand as we all make a
living based on its reputation in the marketplace.”
(Id. at 2.)
RainSoft®-brand in every customer facing opportunity,” so that
(Id. at 2; DSUF Ex. V at 26, ECF No. 88-
RainSoft and Basement Technologies also agreed that “all
[Basement Technologies] shall be considered the shared customers
of AQUION, INC[.] 1 and [Basement Technologies] . . . and that
neither . . . has . . . any . . . superior right, interest[,] or
ownership in, or control of, such customers . . . .”
(DSUF Ex. U
The agreement went on to stipulate that Basement Technologies
could not “sell, service, rent, promote, lease[,] or install
products” other than RainSoft’s without RainSoft’s permission,
(id.), which was never granted, (Pl.’s Statement of Disputed Facts
(“PSDF”) ¶ 143, ECF No. 109.)
It also defined “[t]he proper way
for a [dealership] employee to greet customers when answering
the phone”: “Hello, ABC Water Company, your local RainSoft Dealer.”
(DSUF Ex. V at 24 (emphasis omitted).)
Ultimately, the “spirit of
this agreement” was for Basement Technologies to operate under
RainSoft’s aegis, and as closely as possible without merging into
a single entity.
(DSUF Ex. U at 2.)
In other words, as the
agreement’s preface provided, addressing Basement Technologies,
“You are becoming part of an organization that expects and counts
on your participation and support . . . .”
Though MacFarland was not privy to the companies’ agreement,
showed that Oster had accurately conveyed its essence.
Aquion, Inc., is RainSoft’s parent company. (DSUF ¶ 42.)
Because neither party argues the difference between Aquion and
RainSoft matters to the outcome here, the Court uses them
interchangeably, so as not to confuse its readers.
Home Depot’s Water Test from RainSoft a Scam?” the post mixed
narration – “The salesman was super nice, and very friendly with
our dog.” – and critique of Oster’s presentation. (Pl.’s Statement
of Undisputed Facts (“PSUF”) Ex. A at 2-5, ECF No. 106-1.)
latter consisted of calling the in-home presentation a “magic show”
and accusing RainSoft of making “false promises,” using “highpressure sales tactics,” and other “slightly deceptive practices.”
MacFarland referred by “magic show” to various acts Oster
performed ostensibly showing RainSoft’s products purifying the tap
water in MacFarland’s home.
(Id. at 2–3.)
Oster had something up his sleeve:
MacFarland wondered if
“I love to think about how, if
I wanted to be devious, I could pull it off.
For example, the
bottles he brought with him that were labeled for our water could
have been laced with contaminants.
I’m not saying they were, but
“As you can tell,” MacFarland wrote, “I’m
it’s possible.” (Id.)
a skeptical person by nature.”
(Id. at 2.)
The “false promises” MacFarland attributed to Oster included
“highly doubt[ed], exclaiming, “Wholy [sic] statistics gone wrong,
(Id. at 3.)
MacFarland took Oster to task too for what
he considered “high-pressure sales tactics,” such as offering five
years of free soap if MacFarland purchased a RainSoft system on
(Id. at 4.)
Because it did not include the cost of
“[i]f I have a lifetime warranty and it costs me $80
a month for repeated maintenance,” he reasoned, “what is the
warranty actually giving me?”
In this first post, MacFarland concluded not that RainSoft
was a scam, but that its products were not worth their price:
don’t want to say that the RainSoft EC4 product doesn’t work.
. . .
From what I’m reading though, the quality is closer to mid-
level, but it is really high-priced . . . .”
(Id. at 5.)
the post by asking his readers if they had “ever installed a water
purification system? . . . Was it RainSoft?”
skepticism, however, MacFarland and his wife – who MacFarland
“recognized . . . was impressed by the product” – gave Oster a
$100 check to keep the free-soap option open. 2
Published eight days later, MacFarland’s second RainSoft post
– “RainSoft Scam? (Part 2)” – updated readers on his “ongoing
efforts to get healthy water in [his] home.”
ECF No. 106-2.)
(PSUF Ex. B at 1,
MacFarland relayed a conversation he had had with
a “RainSoft representative” in which MacFarland haggled $1,000 off
MacFarland added several updates to this article years after
its initial publication. In these updates, MacFarland variously
linked to his and others’ articles he thought corroborated his
assessment of RainSoft; reported that RainSoft had sued him over
the article; and asked his readers to help pay his attorneys’ fees.
(PSUF Ex. E at 5–6, ECF No. 106-5; PSUF Ex. G at 2, ECF No. 1067; PSUF Ex. I at 3, ECF No. 106-9.)
the price Oster quoted him.
He also told of a trip he made
to Lowes where a “representative in plumbing was shocked” that
Home Depot – who had introduced MacFarland to RainSoft’s products
– would “only connect [MacFarland] to this shady RainSoft company,”
rather than show him “a range of filtration systems from various
MacFarland again mentioned Oster’s “magic
tricks” and “bad logic,” before answering the titular question –
“RainSoft Scam?” – by saying he was “leaning towards yes, but you
are free to make your own decisions.”
RainSoft Scammed Me Out of $100.”
(Id. at 3.)
(PSUF Ex. C at 2–3, ECF No.
106-3.) There MacFarland reported that Oster cashed the $100 check
that had held open the free-soap option, contrary to MacFarland’s
expectations of their agreement, which was that MacFarland would
be able to cancel the check any time.
his readership that “if you suspect a company to be a scammer,
don’t even give them an inch, they’ll take a mile.”
(Id. at 3.)
He later added an update to the top of this post, reporting that
“RainSoft’s parent company, Aquion, saw this and . . . sent me a
$100 check to make it right.”
(Id. at 2.)
published over a year later, on December 9, 2014.
ECF No. 110; PSUF Ex. D at 1, ECF No. 106-4.)
(PSUF ¶ 148,
“How to Get Clean,
Purified Water (at [t]he Best Price)” recounted a spat MacFarland
had, in the comments section of one of his other RainSoft posts,
with someone he suspected was, though who denied being, a RainSoft
dealer; MacFarland discounted the commenter’s glowing RainSoft
review because of this supposed bias, accusing the supposed dealer
of engaging in a “comment scam.”
(Id. at 2, 4.)
The post also
added another about the vagueness of RainSoft’s guarantee that if
a customer finds a better-performing product, the customer keeps
the RainSoft system gratis.
(Id. at 2–4 (“There’s no real fine
print[,] . . . and the terms are ambiguous . . . .”).)
“formidable water purification system” – hyperlinking to other
companies’ products – “[t]hat’s less than 1/6th the cost of what
RainSoft was going to charge.”
(Id. at 4–5.)
“I’m not a water
purification expert,” MacFarland wrote, “but I know basic problem
solving, scientific process, and consumer scams . . . .”
Readers were able to comment on each of MacFarland’s four
commented back, dozens of times, usually to agree with those who
agreed with him.
(See, e.g., PSUF Ex. O at 33, ECF No. 106-15
(“Thanks[,] Josh. Your story is exactly the point I’ve been trying
Or to trade barbs with those who did not.
e.g., id. at 2, 7, 34 (“Clearly paying $5,000 or $10,000 for soft
water is going to lead to soap savings that will help you retire
20 years early.”; “Doug, [w]ith all due respect, I believe your
intentions were slimy.”; “No I hadn’t heard of ‘Kratt foods.’
you are going to be sarcastic about it, at least get the spelling
MacFarland also reiterated in the comments his position
that “RainSoft salesmen” were “selling fear” via “scammy sales
tactics” and “magic shows.”
(Id. at 2, 9, 20.)
MacFarland posted “What is a Scam Anyway?” in which he explained
that when he uses the word ‘scam’ he does not necessarily mean to
(PSUF Ex. F at 2-4, ECF No. 106-6.)
this interpretation was consistent with the “conversational tone”
he uses on his site, “a reflection of what [he]’d say to a friend,
a colleague, or anyone else if they asked [him] about [his] opinion
(Id. at 2.)
MacFarland’s reluctance to make legal
claims stems, he said, from the fact that he does not “possess a
100% understanding of all laws.”
(Id. at 3.)
judges know ALL laws,” he ventured. 3
“I don’t even think
Discovery turned up the fact that MacFarland penned
A defamatory, yet substantially true statement if ever there
“What is a Scam Anyway?” to “cover [his] ass.”
ECF No. 110-2.)
(PSUF Ex. R at 29,
That is, to circumvent precedent, as MacFarland
saw it, in Illinois – where this case was originally brought –
that treated the word ‘scam’ as “libel per se.”
also made manifest that MacFarland knew by the end of August 2013
– after he had written the first three RainSoft posts, but before
publishing “Yep. RainSoft Scammed Me Out of $100.” – that Basement
Technologies and RainSoft were distinct entities, and that Oster
worked for the former.
(PSUF Ex. P at 15, ECF No. 110-1 (“Q.
[Y]ou underst[ood] based on this [August 29, 2013,] email that
RainSoft’s dealers are independently owned, right?
A. . . .
MacFarland made these and other admissions in emails
RainSoft requested in discovery, but did not receive until the
night before RainSoft’s summary-judgment brief was due.
ultimately having no effect on the merits of this case, the emails
were discoverable, see Fed. R. Civ. P. 26(b)(1), and should have
been turned over much sooner.
(See Pl.’s Mot. to Compel More
Responsive Answers to Interrogs. & Reqs. for Produc. Ex. G at 5,
ECF No. 54-7 (writing to defendant on July 8, 2016, that “[i]t is
implausible that Mr. MacFarland has no other communications”
relating to RainSoft).) The timing of their disclosure bespeaks
a gamesmanship the Federal Rules of Civil Procedure seek to prevent
and something this Court will not tolerate. See Fed. R. Civ. P.
26(e) (explaining duty to supplement discovery responses).
RainSoft’s Motion for Sanctions (ECF No. 119) is therefore GRANTED
in part: MacFarland shall pay the reasonable expenses, including
attorneys’ fees, RainSoft incurred writing its sanctions motion
and reworking its summary-judgment brief.
See Fed. R. Civ. P.
37(c); Primus v. United States, 389 F.3d 231, 236 (1st Cir. 2004)
(upholding Rule 37 sanctions where movant “had prepared a summary
incomplete] disclosure of her expert evidence”).
And, in fact, when viewed in the light most favorable to
RainSoft, the evidence shows MacFarland understood this to be true
from the very beginning:
the aforementioned $100 option check was
made out to Basement Technologies – though its memo section read,
MacFarland had written in an April 29, 2015, email that “[t]he
reason why I didn’t mention the local dealer [is] it gives away
the fact that I’m in Rhode Island and I try to hide that a bit due
to the MLM stuff.” 5
(PSUF Ex. R at 9.)
He continued, “I try to
write for a national audience and from what I’ve read online my
happens across the country.”
MacFarland admitted that
RainSoft had “a point” when it attempted to educate him on the
finer points of its relationship with Basement Technologies.
“[B]ut for the most part,” MacFarland decided, “it is
RainSoft’s complaint alleges defamation and a Lanham Act
(Second Am. Compl. (“SAC”) ¶¶ 45–59, ECF No. 44.)
MacFarland has moved for summary judgment as to both (Def.’s Mot.
for Summ. J. 1, ECF No. 85); RainSoft has cross-moved for summary
“MLM stuff” refers to death threats MacFarland reported
receiving in response to his posts concerning so-called multilevel-marketing companies.
(Def.’s Statement of Disputed Facts
Ex. AA at 2-3, ECF No. 115-1.)
judgment on its defamation count as to two of MacFarland’s RainSoft
posts (Pl.’s Mem. of Law in Resp. to Def.’s Mot. for Summ. J. & in
Supp. of Cross-Mot. for Partial Summ. J. 1–3, ECF No. 112.)
Court decides these motions by first answering whether the record,
construed in favor of the non-movant, contains a genuine issue of
material fact, and if not, whether the law entitles the movant to
See Lawless v. Steward Health Care Sys., LLC, 894 F.3d
9, 20-21 (1st Cir. 2018).
RainSoft claims MacFarland’s posts contain myriad discrete
instances of defamation.
(See, e.g., SAC ¶ 54.)
But they all
divide into two categories, the first of which is epithet.
category comprises MacFarland’s statements about RainSoft being a
“scam,” being “shady,” engaging in “magic tricks,” “bad logic,”
The second category is made up of MacFarland’s more-
sober assessments, for example, that RainSoft was guilty of “false
promises,” “high-pressure sales tactics,” and “slightly deceptive
This category also includes the purported virulent
strain running through MacFarland’s posts, namely, the implication
that Oster worked for RainSoft, not Basement Technologies – and
that therefore MacFarland’s venom was misdirected, and willfully
so as he knew all along the distinction, but disregarded it to
drive traffic to his website.
tortious statements, just enough of the relevant defamation-law
framework to get started, with the introduction of further facets
added later on, as needed:
under Rhode Island law, suing for
defamation means having to prove, among other things, utterance of
“a false and defamatory statement.”
Swerdlick v. Koch, 721 A.2d
849, 859 (R.I. 1998) (quotation marks omitted; emphasis added).
false statement is one whose “gist or . . . sting” is untrue.
Healy v. New Eng. Newspapers, Inc., 555 A.2d 321, 325 (R.I. 1989)
(quotation marks omitted).
A false statement is defamatory if,
“in the context of the publication in which [it] appear[s],” and
according to its “plain and ordinary meaning in the community in
which [it is] published,” the statement “tends to degrade [the
plaintiff] in society or bring [the plaintiff] into public hatred
In this case, truth and falsity play a larger role than
defamatory and its opposite.
The First Amendment “overlays” state defamation law, Sindi v.
El-Moslimany, 896 F.3d 1, 13 (1st Cir. 2018), and in ways relevant
to both categories of purported defamation here.
Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 125 (1st Cir. 1997)
embodied in the First Amendment and renewed in New York Times Co.
v. Sullivan, 376 U.S. 254 (1964), inevitably means that much
MacFarland’s name-calling – “scam,” “shady,” “magic show,”
“bad logic” – is protected by the First Amendment as “imaginative
Journal Co., 497 U.S. 1, 17, 20 (1990).
As the First Circuit
prohibits defamation actions based on loose, figurative language
that no reasonable person would believe presented facts.”
F.3d at 128; see also Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222,
conjecture, or surmise, rather than claiming to be in possession
of objectively verifiable facts”).
Even before glimpsing Internet
poetics in full bloom – the Facebook rants, Twitter meltdowns, and
Instagram shade – the First Circuit recognized “the reality that
exaggeration and non-literal commentary have become an integral
part of social discourse.”
Levinsky’s, 127 F.3d at 128.
actionable, the court said, “no matter how tastelessly couched.”
The word in Levinsky’s was ‘trashy,’ used by a store manager
to describe conditions at a competitor.
Id. at 126.
court found it had but one meaning in this context – “dirty or
unkempt” – and connoted something falsifiable.
Id. at 129.
review, the First Circuit agreed with the district court’s premise
that “a particular word or phrase ordinarily cannot be defamatory
unless in a given context it reasonably can be understood as having
an easily ascertainable and objectively verifiable meaning.”
The court of appeals disagreed, however, with the court below that
‘trashy’ was such a word.
Noting that “the vaguer a term, or
the more meanings it reasonably can convey, the less likely it is
to be actionable,” and ‘trashy’’s multifaceted semantics, the
court held that the word epitomized “loose language that cannot be
objectively verified,” and was therefore not actionable. 6
130; see also Phantom Touring, Inc. v. Affiliated Publ’ns, 953
F.2d 724, 728 (1st Cir. 1992) (holding a theater column’s inclusion
of a quote describing a play as “a rip-off, a fraud, a scandal, a
snake-oil job” was “protected hyperbole”); Old Dominion Branch No.
496 v. Austin, 418 U.S. 264, 283–84 (1974) (‘traitor’ in union
literature); Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6,
13–14 (1970) (‘blackmail’ in local newspaper).
As a helpful comparator, the Levinsky’s court held that
another of the defendant’s comments – that its competitor
“sometimes put[s] [customers] on hold for 20 minutes” – “was
sufficiently factual to be proved true or false,” and could thus
underwrite a defamation claim. Id. at 131.
MacFarland’s use of the words ‘scam,’ ‘magic show,’ ‘bad
logic,’ and the like similarly fall into the First Amendment’s
safe harbor for imaginative expression and rhetorical hyperbole.
Any reader of his RainSoft posts would reasonably understand these
Cf. Greenbelt Coop., 398 U.S. at 14 (“[E]ven the
most careless reader must have perceived that the word [‘traitor’]
was no more than rhetorical hyperbole, a vigorous epithet . . .
For example, although written as post hoc protection against
liability and of no legal import, MacFarland’s “What is a Scam
Anyway?” accurately describes some of the many meanings of the
word ‘scam.’ (PSUF Ex. F at 2–3 (defining scam synonymously using
the Wikipedia entry for “Confidence Trick”); see also Merriam–
Webster's Collegiate Dictionary 1038 (10th ed. 2002) (“scam . . .
: a fraudulent or deceptive act or operation”).
Indeed, the First
Circuit has already had occasion to mull the word’s meaning, and
found that it “does not have a precise” one.
814 F.2d 839, 842 (1st Cir. 1987).
McCabe v. Rattiner,
Hence, “the assertion ‘X is a
scam’ is incapable of being proven true or false.”
protected by other First Amendment overlays:
the concept of false
ideas, issues of public concern, and substantial truths.
the First Amendment there is no such thing as a false idea,” the
Court famously stated in Gertz v. Welch, Inc. 418 U.S. 323, 339
“However pernicious an opinion may seem, we depend for
its correction not on the conscience of judges and juries but on
the competition of other ideas.”
Id. at 339-40.
interpreted this to mean that the only opinions at risk of tort
liability are those that imply “false assertions of fact.”
Sys., Inc. v. Atl. Ne. Rails and Ports, Inc., 804 F.3d 59, 65 (1st
A corollary being that an opinion whose factual basis
is expressed and (substantially) true is protected speech.
Restatement (Second) of Torts § 566 (Am. Law Inst. 1977) (“[A]
derogatory opinion . . . [based] on [a] statement of facts that
are not defamatory . . . is not subject to liability. . . . The
same result is reached if the statement of facts is defamatory but
the facts are true . . . .”).
liability, the First Amendment requires that a party who sues over
statements regarding issues of public concern prove “that the
statements at issue are not substantially true,” that is, are
Pan Am, 804 F.3d at 66, 68 (“[D]efendants
cannot be on the hook because . . . the speech deals with an issue
of public concern and plaintiffs have not shown the speech (even
if false) is materially false.”)
Statements of public concern are
those that “touch on issues in which the public (even a small slice
of the public) might be interested, as distinct, say, from purely
Id. at 66.
Moreover, statements count as
substantially true if they are, in fact, true, but too even if
they admit of “[m]inor inaccuracies[,] . . . so long as the
Masson v. New Yorker Magazine, Inc., 501 U.S. 496,
517 (1991) (quotation marks omitted); accord Healey, 555 A.2d at
including water safety, sales tactics, and the efficacy of various
Cf. Pan Am Sys., 804 F.3d at 68 (holding that
plaintiffs’ railway system” was an issue of public concern);
Tannerite Sports, LLC v. NBCUniversal News Grp., 864 F.3d 236, 255
n.6 (2d Cir. 2017) (same, regarding report about product allegedly
dangerous to the public).
And MacFarland’s opinions to which
RainSoft objects here – including the charge of “false promises,”
“high-pressure sales tactics,” and “slightly deceptive practices”
– are all accompanied by their factual bases.
MacFarland accuses RainSoft of “what appear to be false promises”
only after seven paragraphs where he relates “RainSoft’s Money
Saving Pitch,” as delivered by Oster during his demonstration in
“calculated that people typically replace one appliance a year
worth around $365, so that cost is about a dollar a day. . . .
used these numbers to show what we are already spending on water
. . . .”).)
MacFarland similarly offered factual bases for his
(See e.g., id. at 4 (“If we bought today,
we’d get 5 years of some free super organic soap and cleaning
MacFarland’s account of Oster’s presentation; the company has
therefore failed to create a disputed issue whether MacFarland’s
statements are materially false.
(See PSDF ¶ 25 (“Admitted that
Oster delivered a sales presentation . . . using a RainSoftdesigned and developed iPad presentation.”).)
Without that, the
law acts a bulwark against liability for the opinions MacFarland
draws from these facts, no matter how unwarranted.
See Riley v.
Harr, 292 F.3d 282, 290–91 (1st Cir. 2002) (“[A]n author who fairly
describes the general events involved and offers his personal
perspective about some of the ambiguities and disputed facts should
not be subject to a defamation action.” (quotation marks omitted)).
If things were otherwise – as the First Circuit recognized in
Riley, where it held that various of Jonathan Harr’s opinions found
in his tour-de-force A Civil Action could not be grist for a
defamation action – “authors would hesitate to venture beyond dry,
colorless descriptions of facts, bereft of analysis or insight,
and the threat of defamation lawsuits would discourage expressions
of opinion by commentators, experts in a field, figures closely
involved in a public controversy, or others whose perspectives
Although unlikely to win a National Book Critics Award,
MacFarland’s musings are afforded by law the same legal protection
On to the underlying disease infecting MacFarland’s posts.
Or at least that is how RainSoft construes the fact that MacFarland
never distinguished Basement Technologies, for whom Oster worked,
Here RainSoft, even MacFarland conceded, has a
Basement Technologies is not RainSoft, and therefore it is
not true, for instance, that RainSoft was responsible for Oster’s
“scammy presentation,” or that “RainSoft Scammed Me Out of $100.”
However, as discussed above, not only will “truth . . . set a
defendant free,” but substantial truth as well.
See Pan Am Sys.,
804 F.3d at 65, 66.
A statement is substantially true unless “it would have a
different effect on the mind of the reader from that which the
(quotation marks omitted).
In Pan Am Systems, a railroad trade
publication ran an article stating that Pan Am’s owner “removed”
the company’s CEO in a dramatic “coup de grace.”
Id. at 73.
truth was actually that the CEO had stepped down voluntarily.
The substantial truth, though, was the same:
Id. at 73–74.
the CEO was no
“[E]ven assuming any difference suggests
falsity,” the First Circuit pointed out, “plaintiffs identify
nothing in the summary-judgment record showing their reputations
would be changed for the better by a more fulsome account of [the
Id. at 74.
An even more-vivid illustration of the relationship between
truth and substantial truth can be found in Bustos v. A & E
Television Networks, 646 F.3d 762 (10th Cir. 2011).
In that case,
then-Judge Gorsuch held that a Hispanic prison inmate could not
sue a cable-television network for mistakenly describing him as a
Bustos, 646 F.3d at 762–63.
The court granted that
this mistake threatened the inmate’s life and meant to some that
Nevertheless, the court said, the truth was
that the inmate had hung out with members of the Aryan Brotherhood
– “In the A & E footage, Mr. Bustos is seen chatting with two Aryan
Brotherhood members . . . .” – and had once helped the group
smuggle drugs inside the prison.
Id. at 767.
And this truth was
not materially different than what was portrayed in the television
segment – not in the eyes, anyway, of the legally favored viewer,
that is, “the reasonable member of the (law abiding) contemporary
Id. at 765.
To this person, the court imagined, the
difference between being a member, rather than a mere friend, of
the Aryan Brotherhood – again, a difference with life-threatening
consequences for those who knew better – was insignificant, the
defendant’s mistake not actionable for being substantially true.
allegedly false statement that plaintiff abandoned his children at
home nights was substantially true given he “was a heavy drinker,
a bad husband, a bad father”); Nichols v. Moore, 477 F.3d 396, 401
[Oklahoma-City] bombing” was substantially true given he was “held
as a material witness in connection” with the bombing).
These examples convince the Court that MacFarland’s elision
Technologies was under contract to sell only RainSoft products,
and to “protect,” “embrace,” and “promote” the RainSoft brand “in
every customer facing opportunity” to ensure that someday “every
person in the world [would] recognize the RainSoft® trademark.”
Those to whom Basement Technologies sold were considered customers
RainSoft, moreover, trained employees of Basement
customers over the phone with a salutation that would have included
Basement Technologies presenting itself as “your local RainSoft
Basement Technologies was basically a de facto arm of
mattered to RainSoft – it stakes much of the current suit on this
distinction, after all – but not to an upstanding member of the
The difference between a company and its
outsourced foot soldiers – who were “expect[ed] and count[ed] on
. . . [to] support” the “organization” they had “becom[e] part of”
– is just too fine to have piqued public concern.
again by substantial truth.
RainSoft also brings a Lanham Act claim, alleging false
advertising, and relying on some of the same statements discussed
in the preceding section – “scam,” “magic show” – to argue that
MacFarland unfairly competed with the company.
See 15 U.S.C. §
1125(a)(1)(B); POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228,
2234 (2014) (“[T]he Lanham Act’s purpose [is] protecting persons
engaged in commerce within the control of Congress against unfair
competition.” (alterations and quotation marks omitted)).
There are several elements a Lanham Act plaintiff must show
to prove false advertising.
First on the list is usually the
misleading description of fact or representation of fact in a
commercial advertisement about his own or another’s product.”
Cashmere & Camel Hair Mfrs. Inst. v. Sax Fifth Ave., 284 F.3d 302,
310–11 (1st Cir. 2002).
Nested within this element, and therefore
also necessary to prove a Lanham Act violation, is the test for
what constitutes a “commercial advertisement,” which has at least
three parts 7:
the representation must “(a) constitute commercial
speech (b) made with the intent of influencing potential customers
disseminated to the consuming public in such a way as to constitute
‘advertising’ or ‘promotion.’”
Podiatrist Ass’n v. La Cruz Azul
de P.R., Inc., 332 F.3d 6, 19 (1st Cir. 2003).
RainSoft’s Lanham Act claim fails because there is no dispute
as to whether MacFarland intended his posts to sell products of
Cf. Romeo & Juliette Laser Hair Removal, Inc. v. Assara I
LLC, 08cv0442(DLC), 2016 WL 815205, at *7–8 (S.D.N.Y. Feb. 29,
business anonymously posted fictitious, disparaging comments about
competitor on consumer-advocacy websites to increase sales).
is undisputed that MacFarland sold advertising space on his site,
and that he would receive some monetary benefit from readers
clicking through and buying products featured in the hyperlinks
found in his posts.
(DSUF ¶¶ 4–8, 133–137.)
But the only product
What used to be a fourth part – that the speech be “by a
speaker who is a competitor of the plaintiff,” Podiatrist Ass’n,
332 F.3d at 19 – was implicitly dispensed with by the Court in
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S.
118, 129–32 (2014). See Handsome Brook Farm, LLC v. Human Farm
Animal Car, Inc., 700 F. App’x 251 256–57 (4th Cir. 2017).
MacFarland can be said to have sold readers is his advice, which
they got for free. 8
See Tobinick v. Novella, 848 F.3d 935, 951
(11th Cir. 2017) (holding that Lanham Act claim fails in part
because blog posts at issue “do not discuss any products for sale
Not only is there no evidence to support a
finding of the requisite intent to sell, it is not at all clear
that MacFarland’s posts even constitute commercial speech, in
other words, “expression related solely to the economic interests
of the speaker and its audience.” Cent. Hudson Gas & Elec. Corp.
v. Pub. Serv. Comm’n, 447 U.S. 557, 561 (1980).
Tobinick provides a helpful analog.
There a dermatologist
sued a neurologist for libel and a Lanham Act violation over
statements the neurologist made in a post hosted by a blog called
Tobinick, 848 F.3d at 940–41.
criticized the dermatologist’s novel method for administering an
arthritis medication, and accused him of running “quack clinics.”
After the dermatologist sued, the neurologist wrote a follow-
dermatologist was using litigation to silence legitimate criticism
RainSoft has not argued that MacFarland’s paying customers
– the companies who advertise on his blog – are the focus of its
Lanham Act claim.
The result would likely be the same if they
there is no evidence that any of MacFarland’s alleged
misrepresentations had a “tendency to deceive” his advertisers.
See Cashmere & Camel Hair, 284 F.3d at 311 (listing “tendency to
deceive a substantial segment of [an advertisement’s] audience” as
another element of a successful false-advertising claim).
of his practices.
The court ended up affirming summary
judgment in favor of the neurologist on the Lanham Act claim:
found that the posts, as a matter of law, were not commercial
speech, “as they d[id] not propose a commercial transaction.”
“Instead, [the] articles evoke[d] many characteristics of
[They] ‘communicated information, expressed
opinion, [and] recited grievances . . . .’”
Id. (quoting New York
The posts had an “educational purpose,” the court felt,
and “add[ed] to the public debate regarding the viability of a
non-FDA approved medical treatment and [were] clearly of import to
The purported purpose of lazymanandmoney.com is likewise to
educate people, specifically to inform them of ways to save money
or spend it wisely, which the content of MacFarland’s RainSoft
posts does nothing to contradict.
(See, e.g., PSUF Ex. D at 6
(“You will have saved yourself thousands and thousands of dollars
before just trusting the RainSoft Salesman.”).)
is not Dr. Steven Novella, neurologist at Yale New Haven Hospital,
and instead a man with an armchair and an Internet connection who
claims to “know [his] way around a scam or two,” does not abrogate
this purpose or transform his musings into commercial speech.
(PSUF Ex. C at 2.)
Neither does the fact that MacFarland makes money from his
If running ads were sufficient to make copy commercial
speech, every newspaper article could be subject to Lanham Act
liability – an absurdity whose coming the Supreme Court has already
“[i]f a newspaper’s profit motive were determinative,
all aspects of its operations – from the selection of news stories
regulation if it could be established that they were conducted
with a view toward increased sales.”
Pittsburgh Press Co. v.
Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 385 (1973).
“Such a basis for regulation,” the Pittsburgh Press Court said,
“clearly would be incompatible with the First Amendment.”
The kickback revenue MacFarland generated – as a member of
Amazon.com’s Associates Program – through hyperlinks to products
sold by Amazon is not enough to turn his speech commercial, either.
See Tobinick, 848 F.3d at 951 (rejecting argument that hyperlinks
sufficient economic motivation in commercial-speech analysis).
providing consumers information.
(See, e.g., PSUF Ex. D at 5
(displaying hyperlinks to filtration products that together, in
MacFarland’s estimation, “would appear to be [a] formidable water
purification system . . . [at] less than 1/6 the cost of what
RainSoft was going to charge me”).)
MacFarland’s customers were
his readers, regardless of whether they clicked through to buy
something from Amazon.
(See DSUF Ex. W at 3, ECF No. 88-23 (“Our
[Amazon’s] customers are not, by virtue of your participation in
the Associates Program, your customers.”).)
impulses of liberty and equality, ensuring the “breathing space,”
NAACP v. Button, 371 U.S. 415, 433 (1963), necessary for debate
that is “uninhibited, robust, and wide-open,” Sullivan, 376 U.S.
it protects us while we freely discuss how we should live
and love, how to wage war and keep peace, how best to govern
And equally, or almost, how to filter tap water on a
For this reason, and those above, summary judgment is
GRANTED MacFarland on all counts.
IT IS SO ORDERED.
William E. Smith
Date: September 30, 2018
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